Bhageerathi (Appellant) v Chandrika and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944** ## **RSA NO. 1207 OF 2019** **AGAINST THE ORDER/JUDGMENTAS 189/2015 OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA OS 464/2012 OF ADDITIONAL MUNSIFF COURT ,IRINJALAKUDA** ## **APPELLANT/2ND APPELLANT/WIFE OF ORIGINAL DEFENDANT:** **BHAGEERATHI AGED 82 YEARS W/O. LATE THUMBARAPPILLY, VISWAMBARAN, EMMAD DESOM, KOOLIMUTTAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADVS. K.NARAYANAN (PARUR) SMT.LISHA K.R. RENJITH THAMPAN (SR.)** ## **RESPONDENTS/RESPONDENTS 1 TO 3 AND 3RD APPELLANT/PLAINTIFFS 1 TO 3 AND SON OF** ## **ORIGINAL DEFENDANT:** |**1**|**CHANDRIKA**| |---|---| ||**AGED 69 YEARS**| ||**W/O. CHARTHAMKUDATH PADMANABHAN, IRINJALAKUDA DESOM, MANAVALASSERY**| ||**VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN - 680 121.**| |**2**|**DEVADASAN**| ||**AGED 60 YEARS**| ||**S/O. VELIYATHVEETTIL ANDI, EMMAD DESOM, KOOLIMUTTAM VILLAGE,**| ||**KODUNGALLUR TALUK, THRISSUR DISTRICT - 680 691.**| |**3**|**LEELAMANI**| ||**AGED 52 YEARS**| ||**W/O. PONAMPILLY KUMARAN, EDATHIRINJI VILLAGE AND DESOM,**| ||**MUKUNDAPURAM TALUK, D/O. VELIYATHVEETTIL ANDI, EMMAD DESOM,**| ||**KOOLIMUTTAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT,**| ||**PIN - 680 691.**| |**4**|**JAYARAM**| ||**S/O. LATE VISWAMBARAN, THUMBARAPPILLY HOUSE, EMMAD DESOM,**| ||**KOOLIMUTTAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT,**| ||**PIN - 680 691.**| ||**BY ADV SRI.T.N.MANOJ**| **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03.08.2022, THE** **COURT ON 19.09.2022 DELIVERED THE FOLLOWING:** R.S.A.No.1207/2019 **2** ## **JUDGMENT** This appeal has been directed against the judgment and decree in A.S.No.189/2015 on the file of Additional District Court, Irinjalakuda which arose out of judgment and decree in O.S.No.464/2012 on the file of Additional Subordinate Judge's Court, Irinjalakuda. 2. The wife of original defendant is the appellant. The suit is one for fixation of boundary and permanent prohibitory injunction. (Parties would hereinafter be referred as per their status before the trial court). 3. An extent of 1.23 acres of land comprised in survey No.188/7 of Koolimuttam Village was purchased by Andy, the husband of 4[th] plaintiff and father of plaintiffs 1 to 3. Out of which, 50 cents on the eastern side was sold to the defendant and the balance 73 cents is the plaint 'A' schedule property, which is in absolute possession and enjoyment of the plaintiffs. Out of 50 cents sold to the defendant, he sold 5.875 cents of land in the year 2002 to one Subin and Sujith and the balance 44.125 cents is scheduled as plaint 'B' schedule property. There was a clear boundary separating the plaint 'A' and 'B' schedule R.S.A.No.1207/2019 **3** properties. Plaintiffs 1 and 3 are residing far away from plaint A schedule property. Of late, defendant is trespassing into plaint 'A' schedule property step by step by destroying its eastern boundary. On questioning the defendant, he proclaimed to trespass again. On the northern side of plaint 'A' schedule property, to a certain extent, the plaintiffs have constructed a compound wall. Defendant has trespassed into the pliant A schedule property and there is every possibility of committing further trespass. Plaintiffs are unable to prevent his acts and hence the suit. 4. Original defendant filed written statement denying the extent of plaint 'A' schedule property described in the plaint. It is admitted that 50 cents of property was purchased from deceased Andy by the defendant as per document No.2834/1984. At the time of purchase of property it was waterlogged area. During that time the defendant had been working at Bhilai Steel Plant, Madhya Pradesh and was staying with his family. Subsequently, he reclaimed the property step by step and a house was constructed during 1987 – 1990. In the said property, on the southern boundary, a chira was constructed and its south a thodu was also made. Coconut trees were planted on the chira R.S.A.No.1207/2019 **4** and on the south-western part of the property for agricultural purpose arrangements were made and motor-shed and bathroom also constructed. Thereafter, the property has been reclaimed and transformed to the present state by spending huge amount. Different types of trees like jack trees, coconut trees, mango trees were also planted. Apart from the sale of 5½ cents, on the eastern side of plaint 'B' schedule property on the northern boundary on its eastern side a strip of land has been purchased by the defendant as per document No.3342/2011. Without disclosing those facts plaint 'B' schedule property has been described in the plaint incorrectly. Plaint 'A' schedule property is lying in lower level than plaint 'B' schedule property and hence there is no need to fix the boundary of plaint A and B schedule properties. Since plaint 'B' schedule property is situated in a higher level than the plaint 'A' schedule property the averment that defendant is trespassing into plaint 'A' schedule property step by step is false and incorrect. Since the plaint A & B schedule properties are situated in two different levels, it is impossible for the defendant to trespass into plaint 'A' schedule property by destroying the boundaries. The defendant is an old man incapable of doing any act as alleged by the plaintiffs. The R.S.A.No.1207/2019 **5** plaintiffs have not constructed any compound wall on any portion of plaint 'A' schedule property. But the defendant had constructed compound wall on the northern boundary from about middle of the property towards west till the north-western corner of his property using concrete poles and slabs during 2012. Defendant has not trespassed into the plaintiffs' property and because of that no commission was taken along with the filing of the suit or till the date of filing the written statement by the defendant. The defendant is old and is suffering from various ailments and is incapable of trespassing into the plaintiffs' property. Hence the plaintiffs are not entitled to get any reliefs as sought for. 5. PWs 1 to 4 examined and Exts.A1 to A4 marked from the side of the plaintiffs. Ext.B1 marked and DWs 1 and 2 examined from the side of the defendant. Ext.C1, C1(a) and C1(b) were also marked. 6. On evaluating the facts and circumstances, the learned Sub Judge found that the plaintiffs proved their right and possession over plaint 'A' schedule property excluding the property covered by Ext.B1 and there was attempt of trespass into the eastern portion of plaint 'A' schedule property by the R.S.A.No.1207/2019 **6** defendant and hence the plaintiffs are entitled for fixation of eastern boundary of plaint 'A' schedule property and also for permanent prohibitory injunction and accordingly the suit was decreed as prayed for. Against which, the appellants filed appeal and the learned Additional District Judge on re-appreciation of the facts and circumstances and evidence confirmed the judgment and decree passed by the trial court. Aggrieved by the same, wife of the defendant approaches this Court in this Regular Second Appeal. 7. Notice was issued to the respondents. Lower court records were called for. Both sides were heard. 8. According to the learned counsel for the appellant/wife of defendant, there is clear admission in the plaint as well as in the chief affidavit that defendant had already trespassed into plaint 'A' schedule property and the allegation in the plaint is that there is possibility of further trespass into the plaint schedule property and the commission report and plan and the evidence adduced by PWs 3 and 4, the Taluk Surveyor and the Commissioner, would prove that a portion of plaint 'A' schedule property is in the possession of the defendant and hence a suit for fixation of boundary is not sufficient without a prayer for R.S.A.No.1207/2019 **7** recovery of possession and hence the judgment and decree passed by the courts below is unsustainable in law and has to be set aside. The learned counsel placed reliance on Anjil Vellachi & Ors v. Mamuni Bhaskaran @ Vattayil Bhaskaran [2009 (4) KLT SN 6 :2009 (3) KHC 728] ; Elizabeth v. Saramma [1984 KLT 606 : 1984 KHC 286], P.K. Cherian v. Koruth Abraham [S.A.No.542/1994 (F)] . 9. Learned counsel for the plaintiffs on the other hand would vehemently contend that there is no admission in the plaint that the defendant trespassed and taken possession of any portion of plaint schedule property and the relief sought also according to him would make it clear that the plaintiffs have sought for injunction against trespass and committing waste in the plaint schedule property and hence there is no need to seek for recovery of possession. He would also contend that the word 'possession' is of wide amplitude and the allegation in the plaint or in the proof affidavit or the evidence that has come out will not in anyway requires or necessitates the plaintiffs to seek recovery of possession and the suit for fixation of boundary alone is required in the fact situation. The learned counsel placed reliance on Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan & Ors [2014 (2) KHC 108 ] and Arikkulangara R.S.A.No.1207/2019 **8** Kunhikkeloth Righesh Babu & Anr v. Pullanhodan Kunnoth Gopalan Nambiar (Died) by LRs. & Ors. [2014 (4) KHC 294] . 10. Based on the above, the following substantial questions of law are formulated: (1) Whether the judgment and decree passed by the courts below are perverse due to mis-appreciation of evidence? (2) Whether the suit filed for fixation of boundary, without a prayer for recovery of possession, is maintainable in law? 11. The case of the appellant/defendant is that from the very beginning in the pleadings of the plaint as well as in the chief affidavit the plaintiff admitted that the defendant trespassed into plaint 'A' schedule property and is further making attempt to trespass into the property and though the suit was filed for fixation of boundary as well as for permanent injunction, no commission was taken along with filing of the suit or till the time of filing of the written statement and it is almost after 8 months of the filing of the suit that the commissioner visited the property with the help of the Taluk Surveyor. That, according to him, is willful act of the plaintiffs to suppress the R.S.A.No.1207/2019 **9** fact that the portion of plaint schedule property is already in the possession and enjoyment of the defendant. 12. The commissioner's report and plan have been marked as Exts.C1, C1(a) and C1(b). In the report, commissioner has stated, as answer to point No.2, that for about 13 mtrs . on the northern boundary of plaint 'A' schedule property is seen in continuation of the compound wall in the property of the defendant and the compound wall is in the possession of the defendant. It is further stated that the compound wall is situated in the property of the plaintiffs which is claimed to be in the possession of the defendant by him. Commissioner further reported that behind the back of the house situated in plaint 'B' schedule property there is a pond and eastern side of the same is lying as ridges and the western portion the ridges has greater width. A motor-pump has also been erected from the motor-shed to the pond situated in the property belonging to the defendant. As per the work memo filed by the defendant, it has been reported by the commissioner that from the western extremity of the compound wall situated in the defendant's property in northsouth direction trees like mango trees, cashew trees, tamarind trees and other boundary stakes (pathals) are standing though R.S.A.No.1207/2019 **10** he could not assess the old age of those trees. It is also reported by the commissioner that the property claims to be in possession of the defendant is lying in a higher level than the plaint schedule property and the property in the possession of the plaintiffs is lying with full of thodu and ridges (chiras) and on the ridges coconut trees are planted. It is further categorically reported by the commissioner that the property claims to be in possession of the defendant is situated in a higher level and there are enormous trees standing in that property including coconut trees, mango trees, cashew trees, arecanut trees and other trees. 13. The commissioner was examined as PW3 and commissioner's report and plan were marked through him. Commissioner stated in chief examination that though he has reported that 15 cents of property of the plaintiffs as per the title deed is in the possession of the defendant, it was so stated due to the level difference. But during cross examination he categorically stated that 12.400 cents of property is lying contiguous to the defendant's property and was found to be in defendant's possession. It is also stated by him that the property of the plaintiffs and that of the defendant are lying in two R.S.A.No.1207/2019 **11** different levels. Further he stated that there is concrete slab compound wall on the north western side of the property in the possession of the defendant and the trees are found in the land lying in higher level. But the first appellate court discarded the commission report simply based on the evidence in chief of the commissioner that, he came to the conclusion that property on the southern side of compound wall is in the possession of the defendant on account of the level differences of the said property and remaining land. But the evidence in cross examination of the commissioner was not touched by the learned Additional District Judge. 14. Taluk surveyor was examined as PW4. In chief examination itself he deposed that the western boundary of plaint schedule property is the green line and it is the property claimed to be in the possession of the defendant and there is level differences in that area. In the commissioner's report, commissioner has not noted any trees other than coconut trees on the ridges of plaint 'A' schedule property. Plaintiffs have no specific averment with regard to the improvements in the plaint schedule property. In the chief affidavit also PW1 has no specific case regarding the planting of trees in the plaint 'A' schedule R.S.A.No.1207/2019 **12** property. She denied the contention of the defendant that plaint A & B schedule properties are lying in two different levels. But, during cross examination, initially, she would admit that there are trees aged 20 – 25 years in the defendant's property. But she was not prepared to admit that all those are planted by the defendant and according to her some are planted by his father also. On further cross examination she would state that in plaint 'A' schedule property there are coconut trees, mango trees, tamarind trees, cashew trees and she is getting income therefrom but that is contrary to the commissioner's report. 15. Apart from the defendant, DW2 was examined from the side of the defendant to prove that he is a coconut plucker in the property of the defendant. Though he was cross examined, nothing could be brought out to discredit his evidence regarding the construction of compound wall upto the north-western corner of the defendant's property. No question also seen to have been put challenging that fact. 16. PW2 was examined from the side of the plaintiff to support their case and she is an immediate neighbour of the defendant, who purchased 5.85 cents of property from the defendant in the year 2002, out of 50 cents purchased by the R.S.A.No.1207/2019 **13** defendant from Andy. She would state during chief examination about the putting up of boundary stakes by Andy, the father of plaintiffs 1 to 3, after selling 50 cents of property to the defendant and she also stated that both Andy as well as the defendant taken mud from the southern part of their land and elevated the northern side. According to her, in that area, both parties constructed compound wall. But in the plaint, plaintiffs have no such case. PW1 also did not depose about the elevation of the northern side of property by taking mud from the southern side of their property. 17. About the compound wall, on the northern boundary, in the plaint, a vague averment is made to the effect that to a certain portion on the northern boundary, they have constructed a compound wall. The period of its construction or its length or nature etc. has not been specified in the plaint or proof affidavit. Defendant on the other hand categorically stated in the written statement that from about the middle of their property till the north-western corner of their property using concrete poles and slab during 2012 they have constructed compound wall. During cross examination, PW1 deposed that it was constructed in 1987. But the first appellate court found fault with the defendant in not R.S.A.No.1207/2019 **14** noting the age of the compound wall through the commissioner. Plaintiff is the master of the litigation and the initial burden is upon him to prove the age of construction. So the facts and circumstances and evidence only probabilise the defence version that they have constructed the compound wall in 2012. Even though in the proof affidavit defendant stated the period of construction of compound wall as 2002, that does not appear to be correct since even suggestion made to PW1 during cross examination was that the compound wall was constructed in the year 2012. 18. So also the commissioner's report and the plan and the evidence of commissioner would clearly establish that the portion which is marked in red colour having an extent of 12.400 cents is in the possession of the defendant. It is clearly stated in the sketch also that the property is in the possession of the defendant. PW3, commissioner, also categorically admit during cross examination that the said portion was found to be in the possession of the defendant at the time of his inspection, though he deposed during chief examination that it has been so stated by him on seeing the level difference. Further, commissioner reported that, if 50 cents as shown in the sketch is demarcated, R.S.A.No.1207/2019 **15** it will pass through the pond situated in the defendant's property. The plaintiffs in the plaint also categorically stated in paragraph 6 as follows: “dÉÄß ¥ÈcÞÏ¢ ® ÉGßµ ÕÙµ{ßçÜAáåµçÏîùßÏßGáUÄá¢å Äá¿VKᢠµçÏîùáKÄßÈí ØµÜ ØÞÆíÇcĵ{ᢠ©UÄÞÃí.” So even the plaintiffs admit that defendant trespassed into plaint schedule property. Though there is no averment that the defendant had reduced any portion of the plaint schedule property into their possession, the evidence adduced in this case as well as the lie of the properties would indicate that 12.400 cents of property demarcated by the commissioner is in the possession of the defendant. Both the courts below placed reliance on the evidence of DW1 wherein she admitted that she was not in possession of any properties other than 50 cents covered by Ext.A4. But oral evidence of defendant will not efface the plaintiffs' admission in the plaint as well as the report of the commissioner wherein it has been found that 12.400 cents of property out of the plaint schedule property is in the possession of the defendant. Pond has also been dug by the defendant in the property and if the 50 cents demarcated by the commissioner as per Ext.C1(a) plan is allowed to be fixed as the boundary, according to the commissioner, it will pass through the pond. R.S.A.No.1207/2019 **16** PW1 in re-examination categorically admitted that the southern portion of the defendant's property is pond. So the plaintiffs have no case that the property where the pond is situated is in their possession. It is in this context that the attitude of the plaintiffs in not taking out a commission along with the filing of the suit assumes importance. A vague averment has been made in the plaint without mentioning any date or year that the defendant had trespassed into the plaint schedule property and he would again trespass into the plaint schedule property. So, all those factors would only lead to an inference that the plaintiffs are well aware that a portion of the plaint schedule property is in the possession of the defendant and if at all a commission for local inspection was taken out, normally, the northern boundary upto the western corner of the wall and the boundary trees in continuation of the same would appear as the boundary of the defendant's property and there is no act of trespass on site. So, if the fixation of boundary as found by the lower courts as per Ext.C1(a) plan is allowed, the pond in the property of the defendant will also have to be taken into the plaint 'A' schedule property. It is in this context that we have to analyze as to whether a suit for fixation of boundary alone would be sufficient R.S.A.No.1207/2019 **17** to resolve the actual dispute between the parties. 19. The learned counsel for the respondents/plaintiffs relied on Kathirummal Chirammal Karthyayani to contend that a casual act of possession, stray or intermittent act of trespass would not mature into “settled possession” and “settled possession” must extend over long period and acquiesced by the true owner. Paragraph No.18 of the said decision was highlighted by the learned counsel which reads thus: 'Possession' is a polymorphus term. It may have different meaning in different context. Meaning of 'possession' depends on the context in which it is used. The concept of 'settled possession' is not so fluid as to accommodate the case on hand. A casual act of possession, stray or even intermittent act of trespass would not mature into 'settled possession'. It was so held by the Hon'ble Supreme Court in Munshi Ram v. Delhi Administration. The Hon'ble Supreme Court had also occasion to deal with the term 'settled possession' in Puran Singh v. State of Punjab. There it was explained that 'settled possession' must extend over sufficiently long period and acquiesced in by the true owner. So far as the case on hand is concerned there is nothing in evidence to show that the true owner had acquiesced in the alleged possession of the narrow strip of land by the defendant. So much so, it cannot be said that the defendant was in settled possession of that narrow strip of land which lies along the boundary so as to contend that the suit for mere fixation of boundary or injunction cannot be sustained. The plea raised by the R.S.A.No.1207/2019 **18** defendant that unless the plaintiff sues for recovery of possession of that narrow strip of land, the plaintiff is not entitled to get the boundary fixed along the line 'EF' demarcated by the Advocate Commissioner must thus fall to the ground. Bearing in mind the principles of law adumbrated by the Division Bench in P. Narayanan Nair's case, affirmed by the Hon'ble Supreme Court, I have no hesitation to hold that the defendant was not in settled possession of the narrow strip of land so as to uphold his plea that the suit for mere fixation of boundary is unsustainable. In that case also, the suit was one for fixation of boundary of the plaint schedule property. Two suits were tried together and the question arose whether plaintiffs are entitled to get boundary fixed along with EF line determined by the commissioner and a contention was advanced by the appellant/defendant that without a prayer for recovery of possession shown in blue shaded plot, respondents are not entitled to get decree for fixation of boundary. Learned counsel for the respondent in that context also placed reliance on Anjil Vellachi & Ors v. Mamuni Bhaskaran @ Vattayil Bhaskaran [2009 (4) KLT SN 6 :2009 (3) KHC 728] . But that has been distinguished by the learned Single Judge by finding that, that was a case in which the extent of land was 22 cents and that plot was lying together with 43 cents as a compact plot and the disputed plot along with the remaining plot R.S.A.No.1207/2019 **19** was lying on a higher level than the eastern boundary property. Including the disputed 22 cents, the entire 65 cents of land in the possession of the defendants in that case was separately identified and it was in that context that suit for fixation of boundary was found to be not maintainable as a short cut or substitute for recovery of possession. But it was held by the learned Single Judge that the position in Kathirummal Chirammal Karthyayani is quite different since the dispute centres around a narrow strip of land. It is also found that if it is a case where large extent of property lying in different survey number is claimed by the plaintiff based on a survey record alone when actually it is in the possession of the defendant plaintiff has to seek recovery of possession of that large extent of property, which is in the possession of the defendant. But so far as the case in hand is concerned, it is only a very narrow strip of land lying along the boundary line. Hence it was held that the presumption should be that the person who has got title to the property and whose boundary extends upto the line fixed is in the possession of that narrow strip of land. 20. But the fact situation of the present case is not identical with Kathirummal Chirammal Karthyayani 's case R.S.A.No.1207/2019 **20** because admittedly the property found to be in possession of the defendant extends to 12.400 cents of property and it is also lying in a higher level than the property in the possession of plaintiffs. A compound wall also has been constructed upto the northwestern corner of the said property. So the decision in Kathirummal Chirammal Karthyayani is not at all applicable to the fact situation of the present case. 21. The learned counsel further brought to my attention Munshi Ram v. Delhi Administration [AIR 1968 (SC) 702] to highlight the meaning of settled possession. On going through the said decision it could be seen that it has no application to the case in hand. That was a criminal appeal wherein accused taken up a defence of private defence and the question arose whether it has exceeded the limit as provided under law. In paragraph No.15, in order to determine the question whether PW5 was in effective possession of the land in question since she had got a specific contention that she is a tenant and tenancy has not been terminated by any of the authorities constituted under the displaced persons (compensation and rehabilitation) Act 1954, it has been found that tenancy right has not been terminated and she has been in effective possession of the field on the date of R.S.A.No.1207/2019 **21** occurrence and prosecution alleged that PW17 rightly or wrongly taken possession of the property on 22[nd] June, 1962 and if at all he had any grievance he could have agitated the same in a court of law and his relatives have no right to take law into their hands. But the Apex Court found that it is based on a misconception of law. In the said circumstances, it has been held in paragraph No.15 as follows: x x x x x It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, R.S.A.No.1207/2019 **22** though not in actual possession at the time, to remove the obstruction even by using necessary force. So on going through the fact situation of that case and the case at hand it has no resemblance at all. Puran Singh & Ors. v. State of Punjab [AIR 1975 SC 1674 : MANU/SC/0184/1975] was also placed reliance by the learned counsel wherein Munshi Ram 's case has been quoted. That was also a criminal appeal wherein defence was private defence of property available to accused and the nature of possession of trespasser in order to claim that defence arose for consideration and question arose whether it can be found that accused had no right of private defence on the prosecution party in entering upon the land. In that case accused taken possession of land a month before the occurrence and sown the crop and that was held to be sufficient possession to enable the trespasser to resist the entry of the true owner. So in the said circumstances it was held that the finding of High Court on the facts of the case that appellants were not in settled possession of land is legally erroneous and cannot be allowed to stand. So it also has no application in the present case. 22. Chandramathy v. Devakey Amma [2010 (4) KLT 465] was further placed reliance. That was a case of fixation of R.S.A.No.1207/2019 **23** boundary and injunction and the court found that in such a suit what is material is only possession claimed by the plaintiffs on the basis of title deed and the fact that none of the plaintiffs mounted the box has no significance and the title over the property with their predecessor was admitted by the defendants who claimed of derivative title from the predecessor under an oral agreement for sale with an inconsistent plea of adverse possession and the oral agreement was repelled by the trial court and in the said circumstances it was found that decree granted for fixation of boundaries was proper and correct. 23. In the present case, it has already been found that in the plaint specific averment is that plaintiffs 1 and 3 are residing far away from the plaint schedule property and the defendant trespassed into the plaint schedule property and is attempting to further make trespass and they are unable to resist the acts of the defendant. No commission for local inspection was taken along with the suit and defendant had got a specific contention in the written statement itself that they have not trespassed into the plaint schedule property and the plaint schedule property and the defendant's property are lying in two levels and hence there is no occasion of trespassing into plaint A schedule R.S.A.No.1207/2019 **24** property by the defendant. It is also their contention that the defendant's property is lying as garden land whereas the plaintiffs' property is lying as ridges and thodu. The allegation in the plaint that on the northern boundary of the plaint schedule properties in certain areas they have constructed compound wall is stoutly denied and it is specifically contended that on the northern boundary of the defendant's property from about middle towards the north-western corner they have constructed compound wall using concrete posts and slabs. The commissioner also noted that the property upto the northwestern corner of the compound wall is found to be in possession of the defendant which has come out to be in a higher level than the plaint A schedule property in possession of plaintiffs. It has already been discussed that knowing fully well that a commissioner on local inspection could not identify the 12.400 cents of land which was found to be in possession of the defendant with full of trees and other improvements as a part of A schedule that willfully no commission was taken along with the filing of the suit. 24. The learned counsel for the defendant in this context R.S.A.No.1207/2019 **25** to substantiate his contention that the property found to be in red mark having an extent of 12.400 cents as per the commissioner's report and plan is in the possession of the defendant, a suit for fixation of boundary without any claim for recovery of possession is not maintainable, placed reliance on Anjil Vellachi 's case. In that case, according to the plaintiff, the western boundary line of the suit property is along the line NM in Ext.A8 plan, whereas, according to the defendant, the western boundary line is along the line JKL in Ext.A8 plan. The court below, after trial, came to the conclusion that, in the light of row of trees and ridge demarcating the property in the possession of the plaintiffs and the western property of the defendant, the plaintiffs were in possession of only plot ABCDEFGHIJKL plots in Ext.A8 plan and in order to satisfy the extent of 54 cents covered by the title deeds their property would go up to the line MN and the court below found that the 65 cents of land covered by the title deeds of the defendant would include the disputed yellow shaded plot MNKL also and suit was dismissed. This Court found that the extent of 54 cents covered by Exts.A1 to A3 title deeds of the plaintiff will be satisfied only if the disputed yellow shaded plot MNKL in Ext.A8 is also included. But the R.S.A.No.1207/2019 **26** commissioner noted a row of old trees standing in north-south along the line KL in Ext.A8 plan and also vertical ridges northsouth separating the eastern property. The difference in level also had been noted by the commissioner from the yellow shaded plot and also the property in the possession of the defendant. 25. Since the courts found that the plaintiff is not in possession of yellow shaded plot, the entire 65 cents of land in the possession of the defendant has been identified as OPLK. Since the suit was only for fixation of boundary, without any prayer for recovery of possession, the learned Single Judge held that even if plot MNKL in Ext.A8 is covered by the title deed of the plaintiff since the plaintiff is not found in possession of that plot they cannot have the boundary fixed along the MN line and the boundary can be fixed only along JKL coterminous with their possession. It was found that a suit merely for fixation of boundary without a prayer for recovery of possession is misconceived. A suit for fixation of boundary cannot be a shortcut or substitute for recovery of possession and accordingly the appeal was dismissed. 26. In the present case also it has come out that 12.400 cents of property demarcated in Ext.C1(a) plan is in the R.S.A.No.1207/2019 **27** possession of the defendant. It cannot be taken as a narrow strip of land as has been found in Kathirummal Chirammal Karthyayani 's case. Plaintiffs filed the suit knowing fully well that defendant had already trespassed into their property and simply alleging that they would further trespass a suit for fixation of boundary has been filed as a shortcut. How can the decree to fix the boundary through the pond which is in the possession of the defendant can be executed without decree for recovery of possession? But the boundary of the plaint A and B schedule property has been fixed correctly as per Ext.C1(a) plan. Though Commissioner and Taluk Surveyor, PW3 and PW4, were strenuously cross examined nothing was brought out to discredit the commission report and plan. So plaintiffs can very well seek for recovery of possession of 12.400 cents property in the possession of the defendant in appropriate proceedings. Reserving the right of the plaintiffs for the same the suit for fixation of boundary sought for by the plaintiffs is dismissed. Since it has come out that defendant had trespassed into the property of the plaintiffs the apprehension of the plaintiffs that defendant will further trespass into plaint schedule property is well founded. Hence, injunction granted against trespass is only R.S.A.No.1207/2019 **28** to be confirmed. In the result, appeal allowed in part setting aside the judgment and decree passed for fixation of boundary. There is no order as to cost in the fact and circumstances of the case. Sd/- **M.R.ANITHA** SHG **JUDGE**